Medical Malpractice – Who is Treating You?

Do you know who is treating you? Patients are often unaware that the professional treating them is not a physician. Here is a situation of which I became enlightened to in my practice defending hospitals, physicians and nurses. Hypothetically speaking: Patient goes to the hospital for a routine outpatient procedure under which they are to be sedated with anesthesia. The anesthesiologist M.D. (MDA) greets the patient briefly and asks some history and may perform a short examination. This takes place after another professional, likely a Certified Registered Nurse Anesthetist (CRNA) and/or a nurse has taken a history from the patient. The MDA may not do a real thorough job taking the history or performing an examination because he assumes this has been done by the nurse and/or CRNA. He is present to sedate the patient and once sedated, leaves the operating room giving control over to the CRNA. The patient may have no idea that this is taking place and that they are not being cared for by the MDA. If something goes wrong during the surgery with the anesthesia, the CRNA is allowed to use discretion to take care of the patient and may give more anesthesia without speaking with the supervising MDA. What sometimes happens? The non-MD practitioner may make a mistake which should not have been made and which injures the patient forever.

Another example involves physician assistants (PAs) who routinely treat patients in the ER. The patient may make assumptions that the person giving the orders and treatment is a physician and does not know to inquire further. He may be unaware that he is not being treated by a physician assistant and if he is, he may be unaware of the importance of the distinction. Specifically, he may not be aware that the physician assistant is again loosely supervised by the physician in charge who may or may not look at the patient’s chart until after, and in some cases, well after, the patient has been discharged. Then, it may be too late as for example, in a hypothetical case in which the patient presents to the ER for back pain, gets examined, treated, and ultimately discharged by a physician assistant who diagnoses back strain. Turns out, the back pain was a symptom of a heart attack and the patient goes home and dies of another massive heart attack. At deposition, the physician may testify that he did nothing wrong and it was no breach to allow the physician assistant to make the decisions he did and for the physician to sign off on the chart days later, having never been aware of the patient or the treatment prior to his death. (See MCL 333.16215, MCL 333.17049)

This article is posted to inform patients that they should inquire about who is treating them. In my deposition experience defending treaters, the patient would testify that they did not know that the treater was not a physician. The plaintiff attorney prosecuting the case would go after the treater who could have been a RN, CRNA or PA for example, the physicians supervising them, and the hospital for failing to supervise and have proper protocols in place. These were cases involving missed diagnoses by someone other than the doctor, which were nearly fatal. Please know however that in the practice of medical malpractice defense, we see the rare cases. Medical malpractice is not the norm.

Discussion:

Your hypothetical situations illustrate practitioners who don’t provide care with integrity. I am confident that as a professional, you have reviewed AANA’s Scope and Standards for Nurse Anesthesia Practice (http://www.aana.com/uploade…). By following these standards, CRNAs exhibit the professionalism with which we train and practice. Any healthcare professional practicing as you describe will no doubt wind up in court facing negligence and malpractice. Patient education is vitally important for informed decisions and consent and patient safety is the number one priority for all anesthesia providers. Please do not belittle anesthesia providers, CRNA or MDA, as a whole by casting the ignorance of a few across us corporately. The safety of anesthesia has higher standards because of the professional vigilance and diligence practitioners demonstrate on a daily basis.

I would like your thoughts on a few things. First, ‘supervision’ as you know is a murky term. When used in statute it either denotes an Insurance reimbursement requirement, OR, denotes a working relationship between a CRNA and an MD, DDS, DO, Podiatrist, etc. In either scenario it NEVER imparts liability or responsibility for the practice of a CRNA on any physician, dentist, etc. In other words supervision in the law regarding CRNAs never means ‘responsible for’ or ‘superior practitioner who is in charge of their practice’. No state requires an anesthesiologist be present for a CRNA to administer anesthesia.

That said, individual institutions may have a policy (the majority of larger institutions) which states that an anesthesiologist must be present in the OR during certain portions of the anesthesia (induction and emergence for example). You will find no basis in science or evidenced based medicine for this….it is PURELY an insurance billing issue. The required anesthesiologist presence coincides precisely with those required by Medicare and Medicaid for reimbursement of the anesthesiologist (they wrote that rule by he way).

Since an institution can create a standard they must follow where one would not have existed otherwise (that an anesthesiologist ‘supervise’..just by walking in for 10 min), if this does not happen they have created their own liability for not following their policies.

No CRNA I know would represent that the anesthesiologist will be doing the anesthetic. Thus that misrepresentation, if the basis for action, lays liability at the feet of the anesthesiologist and the institution if found vicariously liable.

I note your comments that the article was intended to merely educate clients as to informed consent and create awareness. You must admit, the article did MORE than imply care by a CRNA is sub-par compared to an MD, and that problems are more likely to occur if a CRNA is left at the helm. "The non-MD practitioner may make a mistake which should not have been made and which injures the patient forever. "

Finally, and i am not being smart, i would be very interested in knowing of specific cases where a claim of misrepresentation of the anesthesia provider has been made and has made an impact on the outcome of the lawsuit. I have not heard of any (and I consult on a lot of cases).

Thank you for creating a dialogue which, in my opinion, is overdue. The lack of public understanding of Certified Registered Nurse Anesthetists (CRNAs) role and lack of CRNA identity is a common problem and magnifies an overlooked issue requiring further emphasis on public awareness. Despite the overwhelming CRNA’s contribution to perioperative treatment of patients, CRNA’s remain in anonymity. As a CRNA and Doctoral student I look forward to exploring this topic.

If a patient does not understand when introduced to a CRNA who along with an anesthesiologist will provide their anesthesia care. Most likely the anesthsia providers did not represented themselves as an anesthesia care team. The ACT approach usually assuages any confusion and provides necessary clarity.

Suffice it to say that CRNAs have commented on this site and indicated their dispute and offense taken with the information. Their comments are not posted because the article is not to induce debate, but to more or less say, patients should be proactive in procuring informed consent about their medical treatment. No further comments by me will be posted on this page about this topic.

An article about the difference between an anesthesiologist and a CRNA will be coming soon.

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